Citation Nr: 0504656
Decision Date: 02/18/05 Archive Date: 02/24/05
DOCKET NO. 04-14 424 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Veteran and his spouse
ATTORNEY FOR THE BOARD
Jonathan Taylor, Counsel
INTRODUCTION
The veteran served on active duty from November 1966 to
August 1968.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a June 2002 rating decision of the
Jackson, Mississippi, Department of Veterans Affairs (VA)
Regional Office (RO).
The veteran and his spouse appeared at a hearing held at the
RO on June 9, 2004. A transcript of that hearing has been
associated with the record on appeal.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
agency of original jurisdiction.
2. A VA psychiatrist and a VA psychologist have diagnosed
the veteran with PTSD.
3. The veteran served as a combat engineer in Vietnam from
December 1967 to August 1968; he was exposed to dead bodies
and combat situations.
4. A VA psychiatrist and a VA psychologist have stated that
the veteran's PTSD is related to his exposure to these
stressful events during his service in Vietnam.
CONCLUSION OF LAW
The veteran's PTSD was incurred during service. 38 U.S.C.A.
§§ 1110, 1131, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.303,
3.304(d), 3.304(f) (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran's service personnel records show that he served
as a combat engineer in Vietnam from December 15, 1967, to
August 19, 1968. During that time, he was assigned to
Company B of the 14th Combat Engineering Battalion. He was
awarded the National Defense Service Medal, the Vietnam
Service Medal, and the Vietnam Campaign Medal.
Operational Reports-Lessons Learned for the battalion to
which the veteran was assigned indicate that from December 6,
1967, to January 13, 1968, B Company supported Operation
KLAMATH FALLS. Operation KLAMATH FALLS was initiated as a
search and destroy operation to find, fix, and destroy an
enemy base. All stages of Operation KLAMATH FALLS were
characterized by small contacts with local guerillas and main
force units. Throughout the operation, the enemy moved in
small groups and utilized sniper fire effectively. There
were enemy and American losses. In February 1968, a large
enemy force had surrounded B Company at Duc Trong. At least
once in February 1968, the work of B Company was stopped due
to enemy activity. The company assisted in manning defensive
positions. In March 1968 enemy Tet Offensive continued
through both the planning and execution phases of an
operation by the battalion. The enemy interdicted the lines
of communication within the area of battalion operations,
delaying for two weeks the movement of B Company. A platoon
of B Company moved from Bao Loc to Duc Trong. It swept the
road, removed enemy roadblocks, and repaired enemy damage to
the road and drainage structures. The records document
injuries and deaths due to enemy mines.
In a March 2002 statement, the veteran reported that he
witnessed combat during search and destroy assignments and
during mine sweeping operations. He saw body parts along the
road and had to move dead bodies.
At a November 2002 VA mental disorders examination, the
examiner, a VA psychiatrist, reviewed the veteran's claims
folder and records of VA treatment of the veteran and
examined the veteran. The veteran reported that he had
served in Vietnam in a combat engineering division. The unit
performed mine sweeps. He had been sent out on a mine sweep,
and his unit had been attacked by the enemy. He was not
injured, but many fellow soldiers were. His unit was sent on
search and destroy missions. The examiner diagnosed the
veteran with PTSD. The examiner noted that the veteran had
severe stressors from exposure to wartime trauma in Vietnam.
The veteran satisfied the DSM-IV criteria for a diagnosis of
PTSD. He had had exposure to death on the battlefield. His
symptoms included re-experiencing; avoidance behavior;
increased arousal; prolonged duration of disturbances; and
significant impairment in social, occupational, and other
areas of functioning.
At a November 2002 VA initial evaluation for PTSD
examination, a VA psychologist, reviewed the veteran's claims
folder and examined the veteran. The veteran reported
serving as a combat engineer in Vietnam. The examiner noted
that the information in the claims folder generally
corroborated the veteran's reported history and interview
information. The veteran had reported seeing and moving dead
bodies. The veteran had flashbacks of seeing himself doing
minesweeping patrols and seeing dead bodies and body parts.
Diagnoses included PTSD.
In March 2003 the RO contacted the museum historian at the
Army Engineer Association. The historian confirmed that the
veteran's unit was involving in minesweeping during the
period of the veteran's service.
At a June 2004 hearing, the veteran testified that he served
as a combat engineer in Vietnam. He was involved in
minesweeping and in firefights with the enemy, and he saw
many dead bodies and had to move bodies. He stated that his
unit was exposed to occasional mortar attacks and sniper
attacks.
VCAA
VA has a duty to assist claimants in the development of facts
pertinent to their claims. On November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA). This law redefines the obligations of VA
with respect to the duty to assist and includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.
38 U.S.C.A. §§ 5102, 5103, 5104A (West 2002); 38 C.F.R.
§ 3.159(b) (2004).
First, VA has a duty to notify the claimant and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim.
Information means non-evidentiary facts, such as the
claimant's address and Social Security number or the name and
address of a medical care provider who may have evidence
pertinent to the claim. Second, VA has a duty to assist the
claimant in obtaining evidence necessary to substantiate the
claim.
VA regulations implementing the VCAA are applicable to all
claims filed on or after the date of enactment of the VCAA,
November 9, 2000, or filed before the date of enactment and
not yet final as of that date. See also VAOPGCPREC 7-2003
(Nov. 19, 2003) (determining that VA regulations implementing
the VCAA are more favorable to claimants than the law in
effect prior to their enactment).
Given the determination below, the RO fulfilled its duties to
inform and assist the veteran on this claim. Accordingly,
the Board can issue a final decision because all notice and
duty to assist requirements have been fully satisfied, and
the veteran is not prejudiced by appellate review.
Analysis
Having determined that the duties to inform and assist the
veteran have been fulfilled, the Board must assess the
credibility, and therefore the probative value of proffered
evidence of record in its whole. Owens v. Brown, 7 Vet. App.
429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed.
Cir. 2000); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir.
1997); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley
v. Brown, 5 Vet. App. 155, 161 (1993). When, after careful
consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. 38 C.F.R. § 3.102 (2004).
To establish service connection for a claimed disability, the
facts, as shown by the evidence, must demonstrate that a
particular disease or injury resulting in current disability
was incurred during active service. See 38 U.S.C.A. §§ 1110,
1131 (West 2002); 38 C.F.R. § 3.303 (2004). When a disease
is first diagnosed after service, service connection may
nevertheless be established by evidence demonstrating that
the disease was in fact incurred during the veteran's
service, or by evidence that a presumption period applied.
See 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). Service
connection for PTSD requires medical evidence diagnosing the
condition, and credible supporting evidence that the claimed
in-service stressor actually occurred, as well as a link,
established by the medical evidence, between current
symptomatology and the claimed in-service stressor. 38
C.F.R. § 3.304(f) (2004).
In this case, the veteran has been diagnosed with PTSD by a
VA psychiatrist and a VA psychologist separately in November
2002. The Board notes that the medical diagnoses of PTSD are
not based upon a finding that the veteran engaged in combat
with the enemy. See Zarycki v. Brown, 6 Vet. App. 91, 98
(1993); 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304
(2004). The stressors noted by the examiners included the
veteran's participation in mine sweep operations, the
veteran's unit being subject to enemy attack, and the
veteran's exposure to dead bodies. The examiners explained
fully the relationship between the veteran's experiences in
service and his symptoms of PTSD. Although the evidence does
not indicate that the veteran himself engaged in combat with
the enemy, to the extent that the veteran's experiences may
be construed as non-combat stressors, they have been
sufficiently corroborated by evidence independent of the
veteran's statements. See Pentecost v. Principi, 16 Vet.
App. 124 (2002) (holding that the supporting evidence need
only imply that the veteran was personally exposed to the
stressor.).
The unit records indicate that the veteran's unit was subject
to enemy attacks, removed enemy mines and roadblocks, and
passed through areas of enemy damage. The evidence is not
specific regarding the veteran's individual involvement in
any of these activities. Indeed, regarding the incidents of
involvement with the enemy, the records suggest that other
units were associated with the veteran's unit to engage in
combat with the enemy and to provide security for the
veteran's unit. Nevertheless, resolving doubt in the
veteran's favor, the Board concludes that the veteran has
PTSD as a result of his military service.
ORDER
Service connection for PTSD is granted, subject to the laws
and regulations governing to the award of monetary benefits.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs